Ruddock V Vadarlis - Arguments

Arguments

The Government quickly appealed to the Full Court of the Federal Court of Australia, and on 12 September an application was granted to fast-track the proceedings. The arguments were heard on 13 September.

The Government argued that Judge North had erred in his judgment on a number of matters. They argued that North had made incorrect findings of fact, and that in truth:

• the rescuees were not being detained by the SAS troops,
• in reality it was the captain of the Tampa, Arne Rinnan, who was detaining the rescuees,
• the circumstances of the rescuees were self-inflicted, and
• the rescuees were not detained because they had the option of going to Nauru or New Zealand under the Pacific Solution.

They also argued that North erred in finding that the Government did not have a prerogative power to prevent the rescuees from entering Australia, and the complementary power to detain the rescuees for the purposes of expelling them from Australia. This was the principal issue in the appeal.

The VCCL and Vadarlis again argued that if there was such a prerogative power, it had been completely replaced by the statutory scheme in the Migration Act 1958. They argued that the Act "covered the field", that is, it was so comprehensive that it demonstrated an intention to completely displace any other executive powers in the subject area (the concept of "covering the field" usually refers to the way that federal laws can displace state laws if they show an intention to be the only law with respect to the subject matter, see section 109 of the Australian Constitution).

Judge French summarised the key issues in the appeal as being:

1. "Whether the executive power of the Commonwealth authorised and supported the expulsion of the rescuees and their detention for that purpose.
2. "If there was no such executive power, whether the rescuees were subject to a restraint attributable to the Commonwealth and amenable to habeas corpus."